1991 (10) TMI 230 - HC - Companies Law

Summary

Issues:
Jurisdictional error in dismissing execution petition due to lack of transfer under section 38 of the Civil Procedure Code.

Analysis:
The revision petition challenged the lower court's order in an execution case where the petitioner, a decree-holder, sought to enforce an order passed by the company court. The lower court dismissed the execution petition citing lack of transfer of the decree under section 38 of the Civil Procedure Code, deeming it not maintainable. The petitioner contended that the company court's order could be executed by the current court without transfer, relying on sections 634 and 635 of the Companies Act. The petitioner argued that the lower court erred in applying section 38 of the Civil Procedure Code, as the procedure for enforcing orders of the company court differs from that of the Civil Procedure Code.

The petitioner highlighted that section 635 of the Companies Act allows for the enforcement of the company court's order by producing a certified copy to the court tasked with execution. The judgment clarified that orders of the company court, while not decrees in the traditional sense, can be enforced similarly to decrees under the Civil Procedure Code. It was emphasized that the procedure for executing company court orders differs from that of the Civil Procedure Code, thus negating the need for compliance with section 38 and related provisions. The court ruled that the lower court's dismissal of the execution petition was a jurisdictional error, as the company court's order could be enforced without formal transfer under the Civil Procedure Code.

In conclusion, the High Court allowed the revision petition, setting aside the lower court's order and directing the lower court to proceed with the execution petition to enforce the company court's order in accordance with the law. The judgment emphasized that the lower court's misinterpretation of the procedural requirements for executing the company court's order led to its dismissal, which was deemed erroneous. The ruling underscored the distinct procedures governing the enforcement of company court orders, emphasizing the applicability of the Companies Act provisions over the Civil Procedure Code in such cases.